Douglass v. Alton Ochsner Medical Foundation

• Decision Date: 13 June 1997
• Citation: 695 So.2d 953
• Parties: 96-2825 La
• Court: Louisiana Supreme Court

Page 953

695 So.2d 953

96-2825 La. 6/13/97

Steve DOUGLASS, Individually and on behalf of his Minor

Child, Annie Marie Douglass; and the Minor

Children, Adam Ruben Douglass and Andy

Alton Douglass; and Kathy Douglass. v. ALTON OCHSNER MEDICAL FOUNDATION; John L. Ochsner, M.D.;

Terry D. King, M.D.; and the American Association

of Blood Banks, Inc.

No. 96-CC-2825.

Supreme Court of Louisiana.

June 13, 1997.

Thomas Wilson Mull, Mull & Mull, Covington; John Norwood Perkins, Carl M. Duhon, Lafayette, for Applicant.

Edward Paige Sensenbrenner, Charles Fenner Gay, Jr., Robert Markle, Adams & Reese, New Orleans; C. William Bradley, Jr., Deborah I. Schroeder, Richard Engel Gruner, Jr., Lemle & Kelleher, New Orleans; Lawrence J. Hand, Jr., New Orleans, Phelps Dunbar; Charles L. Chassaignac, Carmelite Marie Bertaut, Chaffe McCall Philips, Toler & Sarpy, New Orleans; Duncan Barr, Lisa T. Ungerer, San Francisco, CA, Jesse D. McDonald, Hudson, Potts & Bernstein, Monroe, for Respondent.

[96-2825 La. 1] TRAYLOR, Justice. ^*

The issue in this case is whether a partial summary judgment that disposes of one or more, but less than all, of the issues in a case is a final judgment which must therefore be immediately appealed in order to seek review of the judgment. Because the Louisiana Code of Civil Procedure clearly authorizes partial summary judgments and provides that such a judgment is a final judgment, we find that the proper vehicle for seeking review of a partial summary judgment is by appeal. Therefore, a supervisory writ normally will not lie to correct an improperly granted partial summary judgment.

Facts and Procedural History

On January 24, 1983, defendant John Ochsner performed surgery on Annie Marie Douglass at Ochsner Foundation Hospital to repair multiple heart defects. During the course of surgery and recovery, Douglass received several units of blood and blood products. Douglass had no complications and was discharged on January 29, 1983. She has had no related heart problems or symptoms since.

In March 1993, Douglass was diagnosed as positive for HIV. In December, 1995, plaintiffs Steve Douglass, individually and on behalf of Annie Marie Douglass, Kathy Douglass, and their minor children, Adam Douglass and Andy Douglass (hereinafter "Douglass"), filed suit [96-2825 La. 2] in the 24th Judicial District Court against Dr. Ochsner and Alton Ochsner Medical Foundation (Ochsner), Dr. Terry King, and the American Association of Blood Banks (AABB) alleging various theories of liability, including that Ochsner was strictly liable for the distribution or production of a defective product (blood) and breach of an implied warranty of merchantability.

All defendants subsequently moved for summary judgment or partial summary judgment. Based upon La.R.S. 9:2797, ¹ Ochsner moved for, and was granted partial summary judgment dismissing Douglass' claims of strict liability and breach of implied warranty of merchantability. ² The trial court also granted summary judgment in favor of defendant AABB and partial summary judgment in favor of Dr. King. In response, Douglass sought supervisory writs against all three judgments from the Fifth Circuit Court of Appeal, who denied the application on October 25, 1996. Douglass also moved for and was granted leave to file devolutive appeals against the judgments in favor of defendants AABB and Dr. King. ³ Douglass did not, however, seek leave to appeal the judgment granted in favor of Ochsner. Douglass eventually requested that the Fifth Circuit amend its denial and treat Douglass' writ application as a motion and order for appeal. The Fifth Circuit denied this motion, stating, "The [October] 25, 1996 order of this Court denying writs clearly spelled out plaintiffs' right to a regular appeal following final judgment."

We subsequently granted Douglass' application in order to review the partial summary judgment rendered in favor of Ochsner.

Partial Summary Judgments

In Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1241 n. 12 (La.1993), we stated:

We therefore reserve for another day the question of whether a partial summary judgment, that merely decides one of several claims, defenses, or issues without dismissing any party, is a final judgment which is authorized by Article 1915 and which therefore must be appealed immediately in order to prevent the judgment [96-2825 La. 3] from acquiring the authority of a thing adjudged.

We now answer that question in the affirmative and hold that the proper vehicle for seeking review of the grant of a partial summary judgment is by way of appeal and that a supervisory writ normally will not lie to correct an improperly granted partial summary judgment.

The Louisiana Code of Civil Procedure provides that a summary judgment that determines the merits of a case in whole or in part is a final judgment. La.Code.Civ.P. art. 1915, entitled "Partial judgment," expressly authorizes the rendering of a final judgment on less than all of the issues in the case when the court grants a summary judgment. La.Code.Civ.P. art. 1915 provides in relevant part:

A. A final judgment may be rendered and signed by the court, even though it may not grant ... all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:

* * * * * *

(3) Grants a motion for summary judgment, as provided by Articles 966 through 969 ...

* * * * * *

B. If an appeal is taken from such a judgment, the trial court nevertheless shall retain jurisdiction to adjudicate the remaining issues in a case.

Notably, Article 1915 specifically refers to the appealability of such a partial judgment by stating that the trial court will retain jurisdiction over the remaining issues in the case if an appeal is taken from a partial judgment. La.Code.Civ.P. art. 1915(B). Article 966, referenced by Article 1915(A)(3), provides that either party may move for summary judgment "for all or part of the relief for which he has prayed." La.Code.Civ.P. art. 966(A)(1) (emphasis added). Article 968, also referenced by Article 1915(A)(3), clearly states that summary judgments are final judgments. Finally, Article 1841, provides that a judgment that decides the merits of the case in whole or in part is a final judgment. La.Code.Civ.P. art. 1841 (emphasis added); Tolis v. Board of Supervisors of La. State Univ., 660 So.2d 1206 (La.1995) (per curiam).

These articles clearly authorize the rendition of a summary judgment which disposes of one or more, but less than all, of the claims or issues presented in a case. These articles also clearly provide that such a judgment is final.

Final judgments are appealable judgments. La.Code.Civ.P. art. 2083(A); In Re Howard, 541 So.2d 195, 197 (La.1989) (per curiam). Thus, the grant of a partial summary [96-2825 La. 4] judgment, as a final judgment, is appealable. ⁴ We have upheld the appropriateness of deciding the merits of a supervisory writ which could terminate the litigation in order to "avoid the waste of time and expense of a possibly useless future trial on the merits." Herlitz Const. Co. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981). We did so in the interest of "judicial efficiency and fundamental fairness" to the litigants. Id. Here, an immediate appeal of a grant of partial summary judgment is equally fundamentally fair to the litigants. An immediate appeal will terminate the litigation and avoid the wastes and possibly useless future trial with equal efficiency. Because a supervisory writ is no more efficient and does not better serve the goals of judicial efficiency and fundamental fairness, an immediate appeal is necessarily an adequate remedy for seeking review of a final judgment. Where there is an adequate remedy by appeal, there normally is no need for the courts to exercise supervisory jurisdiction. As this Court has held, it is a mistake to seek review of a final judgment by supervisory writ rather than by appeal. In re Howard, 541 So.2d at 197; see Armstrong v. Stein, 634 So.2d 845 (La.1994).

Because a partial summary judgment that decides the merits of a case in part is a final judgment subject to immediate appeal, we hold that the proper vehicle for seeking review is by appeal in accordance with La.Code Civ.P. art. 2083(A) and 2121.

Conversion into Appeal

Although we now hold that an appeal is the proper vehicle for seeking review, we have previously, in order to "do substantial justice," converted numerous applications for supervisory writs into appeals and remanded to a lower court with instructions to treat the application for supervisory writs as a petition for appeal and to grant that appeal. E.g., Stein v. Martin, 97-0287 (La. 3/27/97), 691 So.2d 674 (per curiam), In Re Howard, 541 So.2d at 195; see La.Code Civ.P. art. 865. ⁵ In the instant case, because the law regarding the finality and appealability of partial summary judgments was arguably not yet settled, ⁶ we likewise convert Douglass' application for supervisory writs into an appeal.

[96-2825 La. 5] Decree

For the foregoing reasons and in order to do substantial justice, we therefore remand this matter to the court of appeal to docket as an appeal. ⁷

REMANDED.

JOHNSON, J., dissents.

LEMMON, J., dissents and assigns reasons.

KIMBALL, J., dissents for the reasons assigned by LEMMON, J., and assigns additional reasons.

[96-2825 La. 1] LEMMON, Justice, Dissenting.

This case is a classic example of the improper use of a partial summary judgment to decide a single issue in the case without granting any of the relief sought by either party. The relief sought by the plaintiff was money to compensate him for the damages he sustained. The relief sought by the defendant was denial of the asserted obligation to pay money damages. The partial summary judgment neither granted nor refused the payment of money damages. The judgment simply struck one of the plaintiff's theories of the defendant's liability for the...